Four Cases for the History Books: Judge Andrew Peck’s Landmark Rulings
I still remember the first time I had the privilege to hear Judge Andrew Peck speak in person about eDiscovery. At an annual Sedona Conference© meeting many years ago, Judge Peck was insightful, articulate, and – above all else – confident and decisive in his views. I remember thinking that the attorneys who appear before him better always bring their A-game.
Fast forward to March 2018 at the Annual Sedona Conference© Institute Program on eDiscovery, where I again had the privilege of hearing Judge Peck speak in person, this time only days before his retirement from the bench became effective. At lunch following the judges panel, a group of us started talking about the impact Judge Peck’s rulings have had on our industry. Four of them stand out and are worth noting.
- Anti-Monopoly, Inc. v. Hasbro, Inc., 1995 WL 649934 (S.D.N.Y., Nov. 3, 1995). It’s not often that one gets to cite a case from 1995 in the context of eDiscovery, but that’s exactly the point – Judge Peck was ahead of his time. In characteristically decisive form, he declared in his ruling that “it is black letter law that computerized data is discoverable if relevant.” Ordinary today, visionary back in 1995.
- Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y., Feb. 24, 2012). Widely recognized as his landmark eDiscovery case, Judge Peck here ruled that “computer-assisted review [or TAR] is an acceptable way to search for relevant ESI in appropriate cases.” In the vanguard once again – and with a dash of his refreshing candor – he went on to say that “[c]ounsel no longer have to worry about being the ‘first’ or ‘guinea pig’ for judicial acceptance of computer-assisted review.”
- Rio Tinto PLC v. Vale S.A., et al., 2015 WL 872294 (S.D.N.Y., Mar. 2, 2015). In this ruling – which Judge Peck himself labeled as “Da Silva Moore Revisited” – he once again returned to declaring black letter law. As he put it, “[i]n the three years since Da Silva Moore, the case law has developed to the point that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.” Ahead of his time, once again.
- Hyles v. City of New York, et al., No. 10 Civ. 3119 (AT) (AJP) (S.D.N.Y., Aug. 1, 2016). In Hyles – the final ruling in Judge Peck’s “TAR Trilogy,” the issue presented was “whether, at [Hyles’] request, the [City] . . . can be forced to use TAR (technology assisted review, aka predictive coding) when the City prefers to use keyword searching.” In classic Judge Peck manner, he declared that “[t]he short answer is a decisive ‘NO.’” Even though TAR will be permitted in cases before his court, its use won’t be mandated.
Although he won’t be issuing rulings anymore, this isn’t the last we’ve heard from Judge Peck. Now Senior Counsel in the New York office of DLA Piper, he will surely help shape eDiscovery law and practice for years to come, both in private practice and in his participation with the Sedona Conference©. And those of us in this industry will be the better for it.
For more information about how leading cases like those from Judge Peck affect our clients, the eDiscovery they undertake, and the services Level 2 Legal offers, contact Chris.
Chris Schultz serves as executive vice president and general counsel of Level 2 Legal Solutions. In addition to serving as the chief legal officer, Chris helps coordinate all aspects of the company’s managed review and corporate compliance projects. He also leads engagement teams assisting clients with a full range of eDiscovery and litigation readiness projects. In addition, Chris is available to provide clients with expert testimony and special discovery master services. A dynamic speaker with more than five years of college-level teaching experience, Chris is a frequent presenter of continuing legal education and other seminars concerning eDiscovery.